Today, voluntary assisted dying legislation is due to be introduced in both the Victorian and New South Wales parliaments and is set for a conscience vote by the end of the year.

If passed, from mid-2019, the highly contentious legislation would allow those suffering from an advanced and incurable illness, disease or medical condition to seek a medically assisted death.

Since the subject of euthanasia can be so ethically complicated, the details of how the new laws will work in practice are important.

At the end of 2016, an independent panel of healthcare and legal professionals, the Voluntary Assisted Dying Ministerial Advisory Panel (the Panel) was asked to look into those details. The Panel published its final report in July and so it’s now possible to get a sense of how (what the Panel calls) voluntary assisted dying would work.

Who will be able to choose euthanasia?

There are two key tests to determine if a Victorian adult will be able to access assistance to die.

Firstly, they need to have ‘decision-making capacity’, so that they understand what is involved and can make a voluntary, informed decision.

Secondly, they need to have been diagnosed with an incurable disease, illness or medical condition that is:

(a) advanced, progressive and will cause death in not longer than 12 months and which is

(b) causing suffering that cannot be relieved in a manner the person deems tolerable.

These tests mean that there are a few situations in which someone who might want to use the voluntary assisted dying laws won’t be able to do so. For example, some people with dementia may not be able to access the voluntary assisted dying scheme.

Similarly, someone with a mental illness or a disability will not, for those reasons alone, be able to access the voluntary assisted dying scheme. Another result is that it will not be possible to nominate voluntary assisted dying as something you want to be done if you become unable to decide for yourself in the future.

How will someone be able to access euthanasia?

Before a person is able to access the voluntary assisted dying scheme, they have to make three separate requests and undergo two independent medical assessments.

The stages are:

First request

A person must make a written request for voluntary assisted dying to a medical practitioner. This medical practitioner will be able to conscientiously object to taking part, but if they don’t, they will make a decision as to whether to act as the ‘coordinating medical practitioner’.

First assessment

The coordinating medical practitioner must conduct the first assessment using the eligibility criteria and must ensure the person is properly informed.

Second assessment

If the person is eligible, the coordinating medical practitioner needs to refer the person to a second medical practitioner who must carry out a second, independent assessment.

Second request

If both medical practitioners decide the person is eligible, the person needs to then complete and sign a written declaration, witnessed by two independent witnesses.

Third request

The person needs to make a final, verbal request to the coordinating medical practitioner. This has to be done at least 10 days after the first request.

Once this is done, and the coordinating medical practitioner has obtained the lethal dose of medication, the person is required to store the medication in a locked box until they decide to administer it.

How will vulnerable people be protected from abuse?

The Panel included a number of different safeguards to help make sure that people do not abuse the assisted dying scheme.

New criminal laws

The Panel has recommended the creation of the following offences:

inducing a person, through dishonesty or undue influence, to request voluntary assisted dying

inducing a person, through dishonesty or undue influence, to self-administer a lethal dose of medication

falsifying records related to voluntary assisted dying; and

administering a lethal dose of medication to a person who does not have decision-making capacity

Witnesses

The written request must be witnessed by two people in the presence of the coordinating medical practitioner.

One of the witnesses must not be a family member, and both must be at least 18 years of age. Neither witness can be a recipient of any material benefit resulting from the person’s death. If it is the coordinating medical practitioner that administers the lethal dose, an independent witness must be present.

Self-administration

The person who has accessed the voluntary assisted dying scheme is the only person who is permitted to administer the lethal medication.

The only time anyone else will be able to administer the medication is if the person is physically unable to do so themselves. In these circumstances, the coordinating medical practitioner will be able to administer the medication.

Minimum training

Both medical practitioners must be qualified as Fellows of a College. At least one needs to have at least five years post fellowship experience, and at least one needs to have expertise in the person’s disease, illness or medical condition.

Both must have had training in making voluntary assisted dying assessments.

Medication permit

The coordinating medical practitioner will need to apply to the Department of Health and Human Services for a permit before they are able to write a prescription for the lethal dose of medication. A pharmacist will only be able to dispense the medication if there is a valid permit.

Oversight

The Panel recommended the creation of a Voluntary Assisted Dying Review Board, a statutory body that would review every case to make sure the safeguard processes are being followed.

Tomorrow, 21 September 2017, NSW Nationals MLC Trevor Khan will also formally introduce a voluntary assisted dying bill into the NSW Parliament with a second reading speech in the upper house, and formal debate due to begin in October.

This means that if these bills are successful, the voluntary assisted dying framework could come into effect by mid-2019.

What do you think about the contentious bill to legalise assisted dying for terminally ill patients? Do you support or oppose it, and why? Let us know in the comments!

Legal Notice

The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.

About Nick Moodie

Nick is a legal researcher based in Melbourne. His work in rights-based law reform is motivated by a fascination with the complexities and paradoxes of law and power. Argue with him on Twitter about law, veganism, atheism, political philosophy, scepticism, Australia’s offshore gulags, the history of Stalinist Russia or anything else.

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